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NEWSLETTER 2013

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agreement. However, the termination rights which favor the employee, as

stated in the Labor Act, cannot be invalidated by a penal clause.

Another type of penal clause, which may be stipulated in an

employment agreement, is ‘the penal clause related to employee training

costs’. In order to improve employee efficiency, the employer may pay for

vocational training for the employee. As a safeguard against a loss on its

investment, an employer may include a penal clause in order to prevent an

employee from terminating an employment contract before the employer

has been able to reap the benefits of the vocational training provided.

Therefore, it is possible to include a penal clause in an employment

agreement which stipulates an employer’s right to claim the vocational

training costs from an employee where an employee terminates the

agreement before the determined period of time, or where the employer

terminates the agreement for just cause.

However, the Court of Cassation requires the establishment of an

equivalence between ‘the training provided for the employee’ and ‘the

amount which should be paid by the employee’ when determining the

validity of a penal clause regarding vocational training costs. The employer

may not claim an amount which exceeds the cost paid for the employee

vocational training; and the employer may claim only the factual costs from

the employee. Accordingly, the Court shall determine the penalty amount

by taking into consideration the cost incurred by the employer. For instance,

the decision of the 9th Civil Chamber of the Court of Cassation dated

16.12.2002 and numbered 2002/9301 E., 2002/23749 K. clarifies that the

employer may request only the training expenses which could be proved

and that any amount exceeding the proven expenses should be rejected

Another type of penal clause, which may be stipulated in an

employment agreement, is ‘the penal clause restricting the termination

rights of the employer’. The termination rights of the employer may

be restricted by penal clauses within the scope of legal and reasonable

grounds. Accordingly, it is ensured that the employer fulfills its

obligations. Otherwise, the loss of the employee shall be compensated

and the provisions with respect to job security shall be exercised.

Özdemir, Erdem

; İş Hukukunda Eğitim Karşılığı Öngörülen Cezai Şart, p. 148, fn. 23.